92 Decision Citation: BVA 92-23857
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-54 219 ) DATE
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THE ISSUES
1. Entitlement to special monthly compensation for loss of
use of the right foot.
2. Entitlement to an increased evaluation for residuals of
a fracture of the right femur with muscle atrophy, currently
evaluated as 30 percent disabling.
3. Whether there was error in not applying the bilateral
factor for separate lower extremity disabilities.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARINGS ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from July 1983 to October
1985.
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating decisions of the
New York, New York, Regional Office (hereinafter RO).
In a rating decision dated in December 1986, the RO assigned
a 100 percent pre-stabilization rating from October 10,
1985, to February 28, 1987, for "flexion rotation
dislocation L1 with residual extremity deficits, closed head
injury, ruptured spleen, multiple rib fractures, fracture,
right femur, left hemopneumothorax." Effective March 1,
1987, the following ratings were assigned: Status post
fracture, right femur, with rod implanted, removed in April
1986, and with muscle atrophy, rated as 30 percent
disabling; status post fracture at the level of the 12th
thoracic and 1st and 2nd lumbar vertebrae with spondylosis
and residual cauda equina syndrome, rated as 20 percent
disabling; status post closed head injury, rated as
noncompensably disabling; status post multiple rib
fractures, rated as noncompensably disabling; residuals of a
ruptured spleen, rated as noncompensably disabling; and
status post hemopneumothorax, also rated as noncompensably
disabling. The combined disability rating was 40 percent.
The notice of disagreement with this determination was
received later in December 1986. A statement of the case
with regard to increased evaluations for each of the
disabilities listed above was issued in February 1987. A
supplemental statement of the case was issued in April
1987. The substantive appeal was received later in April
1987.
In a rating decision dated in November 1987, the RO
increased the schedular rating for the veteran's residuals
of a spinal cord injury to 60 percent disabling, effective
March 1, 1987. The other assigned ratings, 30 percent for
status post fracture of the right femur with muscle atrophy,
noncompensable for status post closed head injury,
noncompensable for status post multiple rib fractures,
noncompensable for residuals of a ruptured spleen, and
noncompensable for status post hemopneumothorax, were
continued. The combined disability rating was increased to
70 percent disabling, effective March 1, 1987. The RO
inappropriately concluded that the rating constituted a
substantial grant of the benefits sought on appeal.
In a January 1989 rating decision, increased ratings for
residuals of the spinal cord injury and for the residuals of
the fracture of the right femur were denied.
A personal hearing was held before a hearing officer at the
RO in April 1990.
In a rating decision dated in June 1990, a 70 percent
schedular rating for the residuals of the spinal cord injury
affecting both lower extremities, with deformity of the
vertebral body at the L1/L2 level was granted, effective
March 1, 1987. The combined disability rating was increased
to 80 percent.
In June 1990, a supplemental statement of the case with
regard to increased schedular ratings for the residuals of
the spinal cord injury and the residuals of the fracture of
the right femur was issued.
In a rating decision dated in September 1990, entitlement to
special monthly compensation on account of the loss of use
of the right foot was denied.
The notice of disagreement with regard to error in failing
to apply the bilateral factor and with the denial of special
monthly compensation on account of loss of use of the right
foot was received in November 1990. A supplemental
statement of the case was issued in January 1991.
The substantive appeal with regard to entitlement to special
monthly compensation and whether there was error in failing
to apply the bilateral factor was received in February
1991. In that same communication the veteran indicated that
he was satisfied with the 70 percent rating assigned for the
residuals of a spinal cord injury.
In a supplemental statement of the case issued in May 1991,
the RO addressed the matters of an increased rating for the
right femur fracture residuals, whether an error was made in
not applying the bilateral factor, and entitlement to
special monthly compensation because of the loss of use of
the right foot.
Another personal hearing was held before a hearing officer
at the RO in October 1991, and a supplemental statement of
the case was issued in November 1991.
The appeal was received and docketed at the Board in January
1992.
The veteran is represented in his appeal by the Paralyzed
Veterans of America, Inc. That organization submitted
written argument on the veteran's behalf in February 1992.
REMAND
A review of the evidence of record discloses that in
approximately January 1988 the Social Security
Administration requested information from the Department of
Veterans Affairs (hereinafter VA) in connection with an
application for disability benefits the veteran had filed.
No further information from the Social Security
Administration is of record.
Although the veteran has withdrawn his appeal for an
increased schedular rating for residuals of a spinal cord
injury, the record does not indicate that he has withdrawn
his appeal for compensable ratings for: Status post closed
head injury; status post multiple rib fractures; residuals
of a ruptured spleen; and status post hemopneumothorax.
There is no recent medical evidence of record with regard to
any of these disabilities.
Further review of the medical evidence discloses that the
veteran has not been accorded special orthopedic and
neurologic examinations by VA since August 1990. When
examined for orthopedic purposes in August 1990, it was
noted that the veteran was attending the VA Outpatient
Clinic in Fort Myers "for his needs." At the time of his
personal hearing at the RO in October 1991, the veteran
testified that he was being followed by a physician at Fort
Myers. However, no reports of treatment at the Fort Myers
facility since 1990 are of record.
In his informal hearing presentation dated in February 1992,
the veteran's accredited representative asserted that the
veteran had complete paralysis of the common peroneal
nerve. The neurological examination accorded the veteran in
August 1990 made no reference to the status of the peroneal
nerve.
In view of the foregoing, and our statutory duty to assist
the veteran in the development of facts pertinent to his
claim, the case is REMANDED for the following:
1. The RO should contact the veteran and
request that he provide a written
statement indicating whether it is his
desire to withdraw or continue his appeal
with respect to the issues of entitlement
to compensable ratings for status post
closed head injury, status post multiple
rib fractures, residuals of a ruptured
spleen, and status post hemopneumo-
thorax. Should any of these issues
remain on appeal, the RO should arrange
for the veteran to undergo medical
examinations for the purpose of
determining the current nature and extent
of impairment for each of the
disabilities remaining at issue. The
examinations are to be conducted in
accordance with the Physician's Guide for
Disability Evaluation Examinations. Any
indicated diagnostic tests should be
performed. The claims folder should be
made available to the examiner(s) for
review.
2. The RO should contact the veteran and
request that he provide the names and
addresses of all health care providers,
other than the VA Outpatient Clinic in
Fort Meyers, Florida, who have treated
him for the disabilities at issue, as
well as the approximate dates of
treatment. Then, after any necessary
authorization is obtained from the
veteran, the RO should attempt to obtain
copies of all treatment records
identified by the veteran which have not
already been obtained.
3. The VA Outpatient Clinic, Fort Myers,
Florida, should be contacted and
requested to provide copies of the
complete clinical records regarding
treatment and evaluation of the veteran
at that facility since 1990.
4. The RO should obtain from the Social
Security Administration copies of any
disability determinations for the veteran
and related records.
5. Thereafter, the RO should arrange for
the veteran to undergo VA orthopedic and
neurology examinations. The neurologist
should provide detailed clinical findings
as to residual function of the right
foot, including balance and propulsion,
and involvement of the peroneal nerve.
Each examiner should comment with respect
to muscle impairment in the right lower
extremity and whether there is any
separate, identifiable left lower
extremity impairment. The examinations
are to be conducted in accordance with
the Physician's Guide for Disability
Evaluation Examinations in order to
determine the current nature and extent
of impairment of the veteran's lower
extremities. Any indicated diagnostic
tests should be performed. The claims
folder should be made available to each
examiner prior to his or her respective
examination.
The RO should then readjudicate all appropriate issues. If
any decision remains adverse to the veteran, a supplemental
statement of the case should be prepared for all issues in
appellate status and the veteran and his representative
should be given a reasonable period of time for reply.
Thereafter, the case should be returned to the Board for
further review, if in order. The purpose of this REMAND is
to obtain additional information. By this REMAND, the Board
intimates no opinion as to the final outcomes warranted. No
action is required of the veteran until he is contacted by
the RO.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JOHN J. CASTELLOT, SR., M.D. SHANE A. DURKIN
*
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).